Between the first .org domain registration, mitre.org (July 1985), to the 8 millionth registration, the world experienced a revolution thanks to the Internet. In the meantime, .ORG similarly established itself as the very heart and soul of the Internet community, becoming the address of choice for a vast array of non-commercial sites, including associations, individuals, families, groups, cultural institutions, wikis and even corporate philanthropic efforts. Since the Public Interest Registry (PIR) took over the management of the .ORG domain in 2003, the organization has emerged as an outspoken leader in the Internet community, frequently advocating on behalf of users, proposing innovative policies to curb domain name abuse, and implementing technical upgrades necessary for the future growth and stability of the Internet. As a result of PIR's efforts and enhanced standing within the Internet community, .ORG has grown from 2.7 million registrations in 2002 to over 8 million today.

"Hitting the 8 million registration mark is a testament to both .ORG's reputation and value to the Internet," said Alexa Raad, CEO of .ORG, The Public Interest Registry. ".ORG is managed with the community in mind, connecting users not only to valuable content but also to each other in order to leverage the power of the Internet for a higher purpose. It's that open, community-driven aspect that has appealed to our users for the past 25 years and will continue to drive our growth in the years to come."

Recently, .ORG further protected its 8 million registrants and pioneered a way to upgrade the Internet infrastructure by becoming the first open, unrestricted gTLD to offer full DNSSEC deployment. Starting June 3, 2010, signed registrars can plan to offer an additional security service to the customers, including the ability to thwart the increasing predominance of attacks like pharming, cache poisoning, and DNS redirection that have been used to commit fraud, distribute malware, and/or identity theft.

Brand abuse increased across all industry categories measured by the Index with the automotive and media industries drawing the most abuse. Abuse targeting luxury brands demonstrated the greatest increase, growing 23 percent year-over-year, followed by abuse targeting apparel brands which grew 14 percent year-over-year. For the third straight year cybersquatting, the method of using brands in bad faith within the domain name system, continued to be the most prevalent form of brand abuse. In addition, phish attacks reached a new record high with 565,502 attacks in 2009, growing 62 percent over 2008's total.

"MarkMonitor Brandjacking Index: 2009—The Year in Review" measures the effect of online threats to brands quarter-over-quarter throughout 2009. The Brandjacking Index investigates trends, including drilled-down analysis of how the most popular brands are abused online and the industries in which abuse is causing the most damage. The report examines how brandjacking tactics—such as cybersquatting, false association, pay per click scams, offensive content, and phishing—have changed over the past year.

"As scammers continually seek new methods of monetizing traffic, brands face a growing and pervasive problem from online abuse," said Frederick Felman, chief marketing officer, MarkMonitor. "With billions of dollars worth of eCommerce sales, intellectual property and online marketing investments at stake, companies need to take proactive roles in fighting brand abuse online now more than ever."

Brandjackers cast a wide net

• The luxury industry saw the greatest increase of brand abuse, growing 23 percent year-over-year.
• Media and automotive brands attract the greatest amount of brand abuse by volume.
• Brand abuse targeting the apparel industry grew 14 percent year-over-year.
• Brand abuse involving an eCommerce component increased by 39 percent in the consumer packaged goods industry and by 60 percent in the luxury industry.

Cybersquatting on the rise

• Cybersquatting continues as the most prevalent brand abuse technique, growing eight percent from 2008.
• Online advertising abuses are more targeted and harder to identify.
• Fraudsters are coordinating the use of multiple methods to conduct brand abuse.

United States leads in hosting brandjacking websites

• While brand abuse is prevalent throughout the world, for the third straight year the United States, Germany and the United Kingdom are home to the majority of brandjacking websites.
• 69 percent of websites that host brand abuse are hosted in the United States. Germany hosts seven percent followed by the United Kingdom at five percent.

Phish attacks at all-time high

• The number of organizations phished for the first time decreased, with only 33 percent of 2009's total being first-time targets. However, the number of phish attacks reached an all-time high, with 598 phish attacks per organization, indicating fraudsters are being more targeted with their attacks.
• Phish attacks reached a new record high with 565,502 attacks in 2009, increasing 62 percent from 2008.
• Phishing attacks targeting payment services brands grew 154 percent in 2009, increasing to 37 percent of the total by industry in 2009 from 24 percent in 2008.
• Attacks targeting financial brands grew 36 percent in 2009, but declined to 40 percent of the total by industry in 2009 from 48 percent in 2008.
• 2009 phish attacks targeting social network brands numbered 11,240, growing 376 percent from 2008.
• Phish attacks targeting social network brands represented two percent of all phish attacks in 2009.
• The U.S. retained the top position for hosting the largest amount of phishing attacks, increasing its share of phish to 44.7 percent in 2009 from 36.5 percent in 2008.
• Canada, Germany and Korea increased in position from 2008 to 2009. North America held the top spot, increasing to 51.2 percent in 2009 from 40.3 percent in 2008.

Methodology

The Brandjacking Index is an independent report produced by MarkMonitor that tracks and analyzes online abuses of leading brands. The cornerstone of the report is the volume of public data analyzed by MarkMonitor using the company's proprietary algorithms—no customer data or proprietary customer information is used to create the Brandjacking Index. This year, MarkMonitor introduced a new measurement for cybersquatting, gauging the persistence of these sites during the study period.

During the study period, MarkMonitor searched approximately 134 million public records daily for brand abuse in domain data. In addition, MarkMonitor analyzes spam feeds from leading international Internet Service Providers (ISPs), email providers and other alliance partners to detect phishing and other fraud. The company has analyzed billions of web pages since 2004 and processes up to 30 million suspected URLs daily.

French Court Orders Fines for Parking

As previously reported, in mid-February 2010 a French court fined Sedo €95,000 ($130,000) for parking a trademark infringing domain name. SafeNames reportedly was fined $5,000 in this case for being the domain registrar. The court used terms like "fraud," "counterfeiting" and "unfair competition" in its ruling. While some in the industry may dismiss this as a case of "beware the (potentially) high costs of doing domain-related business in France," the judgment could serve as a dangerous legal precedent. Furthermore, it could embolden intellectual property protection advocates seeking any and all means to expand the limits and application of trademark law.

Utah Trying to Expand Internet Regulation

Utah has a documented history of attempting to regulate various Internet-related activities. Most have been struck down in court or repealed in subsequent legislative sessions. Nevertheless, Utah's latest attempt is called the "Utah E-Commerce Integrity Act" (SB26), and includes provisions to restrict phishing, pharming, and spyware, as well as a state-level version of the U.S. Anti-Cybersquatting Consumer Protection Act (ACPA). The problem with this legislation, unlike the ACPA, is that it intends to hold liable a registrar, registry, or "other domain name authority" who "knowingly assists" a cybersquatter in a local alleged cybersquatting case. Who knows how broadly the courts will interpret this "knowingly" language. Despite advocacy efforts to convince the bill's sponsor, State Senator Stephen H. Urquhart, to exempt domain name service providers in a manner consistent with federal safe harbor provisions, the Senator refused and no such amendments were made. Consequently, the bill now awaits Governor Gary R. Herbert's likely signature. Not only will registrars and registries have to inappropriately defend themselves on cybersquatting charges in Utah courts, but the Coalition Against Domain Name Abuse (CADNA, a trademark protection association of almost two dozen global brand holders that promoted Sen. Urquhart's efforts) intends to lobby Congress for a national provision along the same lines.

FTC Rulemaking Could Be a Game Changer

Potentially the most far reaching initiative is yet to come. The U.S. Congress is currently working on a reauthorization bill for the Federal Trade Commission (FTC) which could expand the agency's rulemaking authority. An already approved House bill would give the FTC streamlined rulemaking authority over aspects of the business community, thereby allowing the Commission to pursue policy initiatives with little of the typical bureaucratic red tape. For the domain industry, this could mean, for example, that the FTC may decide to issue a new rule requiring US-based registry operators to enforce strict WHOIS accuracy requirements. A registries' failure to comply with these new rules could lead to fines or civil action. Of course, any cost of enforcing additional WHOIS requirements would be passed through to registrars, and then, of course, on to registrants—ultimately impacting over 115 million registrations worldwide. It's easy to imagine how such enforcement and monitoring costs could dramatically reshape the domain name industry as we know it.

Fortunately, the die has not been cast. The Senate is considering its own version of the reauthorization language, and this ultimately will have to be reconciled with the House bill. Although many businesses are weighing in against streamlined rulemaking, other powerful interests are lobbying for the authority. Trademark protection advocates most likely are among those proponents. While final legislation probably will be part of a broader package, thereby raising its likelihood of passage, this also increases the prospect of buried clauses and complex legal linkages that demand careful scrutiny and comment.

Now is the time for the registrars and registries to contact Congress and/or get involved with coalitions to work on a coordinated push for an ICANN-related exemption from broadened FTC authority. If domain name service providers just sit around and wait to see what happens, they'll only have themselves to blame for consequences.

Written by Statton Hammock, Sr. Director, Law & Policy

Until now, in public, large brands have marched in lock step in opposition to new top-level domains, ostensibly because of the high cost of defending and enforcing their marks in multiple new namespaces. The worst-kept secret in the industry, however, is that brands have been making private plans, and brand-service registrars have been prepping their clients for new gTLDs in anticipation of healthy fees for application submission services.

Canon, at least, has decided that the marketing benefits of their own top-level domain outweigh the costs. In the U.S., legal departments, which are good at identifying risk—though not necessarily expert at quantifying it—, exercise a much stronger presence in the corporate boardroom than they do in European and Asian companies.

Could it be that the highly defensive stance of U.S. intellectual property interests, hardened by the file-sharing wars, is not shared by the rest of the world's brands?

In Japan, Canon has decided to cast its lot with the money-makers instead of the money-hoarders. I predict we will see more brands opt for engagement with the Internet by visibly branding themselves with their own new gTLD, but that the the last ones to do so will come from the United States.

Written by Antony Van Couvering, CEO of Minds + Machines

While its economic and social impact is undisputed, for the first time the economic impact of .com has been quantified in a new study that found that the domain serves as a platform for $400 billion in annual economic activity.

Read full story: External Source

With our framework of protection for the registrant, we support the various language communities in growing and evolving the use of our IDN top level domains in a way that is most appropriate for them. We are also looking to the community to develop their language script table—a necessary element in the deployment of IDNs—which ultimately determines the most appropriate use of their language script for domain name labeling purposes.

We believe that our community-based approach to developing and deploying IDNs will best serve the public interest of the various language communities, and we look forward to ICANN's upcoming introduction of new top level domains.

Our approach was recently discussed in an interview with Domain Name Wire.

#1 – ICANN Board Approves the EOI

Kristina Rosette, GNSO Counsel representative highlighted how ICANN had already announced a webinar on March 18th to talk about the new gTLD process and the EOI/Pre-Reservation process. Now while ICANN staff promptly edited this page after Kristina's statement in the public forum, to include the following disclaimer (SUBJECT TO BOARD DECISION), this appears to be preordained based on the additional facts listed below.

#2 – Launch of the Global Communication Plan

The Seoul meeting was interesting as it was one of the first ICANN meetings were there was an absence of artificial timelines in connection with the launch of the new gTLD process. This meeting was also largely absent of timelines, expect for those attendees that managed to sit in on the new gTLD staff briefing given by Kurt Pritz to the Registrar Stakeholder Group. While the first slides in Kurt's presentation where almost identical to the other public presentations, the last two saw the re-emergence of project times. These slides were entitled "Applicant Guidebook V4—Shortest Path" and "Expression of Interest (EOI)—Shortest Path." While this power point presentation given to the registrars is not currently available on the ICANN website, I am sure that within minutes of this article being published it will timely appear on the ICANN website much like the update to the March 18th webinar.

#3 – Approval of the ICM Application

Today on the ICANN correspondence website there appears a private and confidential communication submitted by ICM to ICANN to settle its dispute. Given that this "private and confidential" communication is now public is a reasonable indicator that ICANN will accept the offer. The only suspense is if ICANN approves the last 2007 registry contract posted for public comment, or if it re-opens contractual negotiations. Given that re-opening negotiations would subject ICANN to intense lobbying from certain stakeholder groups that feel rather passionately about this subject and how this might distract staff from its Brussels' deliverables, it is a safe bet to predict that ICANN just bites the bullet and executes the 2007 agreement.

Shock and Awe

Regardless of what actions the ICANN Board takes tomorrow it will be criticized. Therefore, given the new style leadership demonstrated by ICANN President and CEO, Rod Beckstrom and Chairman Peter Dengate Thrush, I predict ICANN goes 'all in." While it may take several years to determine whether the ICANN Board made the right decision in Nairobi, this much is guaranteed for sure, ICANN's actions represent a global economic stimulus plan for attorneys of epic portions that will be paying dividends for year to come. Let the fun begin, and let the chips fall where they may.

Written by Michael D. Palage, Adjunct Fellow at The Progress & Freedom Foundation

ICANN Nairobi carries serious expectations by the community of the ICANN Board to stand up and be counted. On the card are the .XXX fiasco, The Expression of Interest, which I and others have called the expression of "Special" Interest as well as on the New gTLDs implementation which is still littered with many unresolved overarching concerns, and not forgetting the Review mechanisms to oversee ICANN performance per the Affirmation of commitments, which may end up being loaded up with ICANN loyalists.

However, this Thursday and this Friday are unlike any of the previous years. They represent crossroads in ICANN's path that will determine its credibility that will shape its role and influence for years to come under the Beckstrom / Dungate Thrush leaderships. The resolutions ICANN do adopt this Friday or if it chooses to defer decisions on some instead of addressing them squarely will either boost ICANN's credibility or damage them irreparably.

By Friday 12pm Nairobi time we all should know if the ICANN board and its leadership possess the wisdom and far sightedness of a Solomon or a Joe Blog. Whether they are up to the task, challenge and responsibility bestowed on them by the Affirmation of commitments to rule over the entire global internet will also be known. By noon we will know if they have exhibited the needed leadership, diplomatic, and executive skills and the sincerity to show they can rule over the global internet in a fair, equitable and ubiquitous manner to all its stakeholders from Akron to Afghanistan, from DC to Damascus, from Beijing to Bangalore, delivering on its Affirmation of Commitments (AOC) mandate of ensuring accountability, transparency and the interests of all global Internet users as well as promoting competition, consumer trust and consumer choice.

Most important and most compelling of all other issues in Nairobi is .XXX . No matter how the board acts ICANN's credibility will be impacted. If the board instructs staff to execute the 2007 registry contract with ICM, ICANN indirectly admits it was wrong and creates a precedent that its board decisions will be questioned endlessly and can be reversed by an Independent Review panels in the future. If the board chooses not to instruct staff to execute the 2007 contract, it raises serious concerns over the seriousness of the AOC and the review mechanisms over ICANN and the New gTLDs. The board may defer some decisions to a later date citing some excuse in order to gauge a better result and prospect.

But this raises new questions I don't hear much in the ICANN corridors:

A – Does or doesn't ICANN consider itself as a "Global Public Service Provider" ?
B – Isn't ICANN a" Global Monopoly Public Service Provider?
C – As per the AOC, what if ICANN is seen to have failed based on the AOC review panelists?
D – What happens next?

In a competitive market if I am a customer of AT&T and they fail me I switch to sprint or Verizon, it is also called consumer choice. But where is the choice in the ICANN role and what happens if ICANN does fails. Does the community issue statements and press releases calling on ICANN once again to improve it like we have the last ten years. This is hardly choice or competition. ICANN needs to remember the difference between the internet world dealing with it because it respects it and sees it providing a great service as a global monopoly Versus being the only game in town ( the world actually). If ICANN was a service provider in a competitive market, I wonder how many would continue using the ICANN service based on its current levels of "Constituents Satisfaction" if another one can serve them better, faster, and cheaper. Are Google or Microsoft listening, or should ITU the only one aiming at this role?

Other bloggers / friends who are dissatisfied with ICANN wrote and what I add.

Jonathan Zuck: "But when the Chairman backed away from that stance earlier this week in Nairobi, it became clear that we should have held our breath a little bit longer".

I say to Jonathan: Stop holding your breath, no human can keep their breath that long, how long have the IDN communities been waiting for IDN gTLDs. ICANN's rational show a clear monopolistic style of management that knows there is nowhere for you to go and get the service you seek of ICANN anywhere else. Welcome to ICANN style of competition and choice.

Andrew Mack: "A Little Flexibility from ICANN and We Might Just Get IDNs… for Everyone"

I say to Andrew: The little flexibility you hope for in ICANN is like the short distance that appears between stars when you look up to the night sky. In reality these stars are light years apart. And so is ICANN on IDNs for everyone, I can speak on this matter as an expert on IDNs who has served on the ICANN President Advisory Committee on IDNs since its inception in 2005.

I will post my verdict after Friday 12pm Nairobi Time.

Written by Khaled Fattal, Chairman and CEO

.ORG, The Public Interest Registry (PIR) today announced plans to complete the final step to realizing full DNSSEC deployment in the .ORG registry by accepting second level signed .ORG zones beginning in June of 2010. This positions .ORG as the first generic top-level domain (TLD) to offer full DNSSEC deployment.

All registrars can now plan to offer an additional security service to their customers. The benefits of DNSSEC include the ability to thwart the increasing predominance of attacks like pharming, cache poisoning, and DNS redirection that have been used to commit fraud, distribute malware, and/or identity theft. DNSSEC, an upgrade to the internet infrastructure, protects Internet resolvers (clients) from forged DNS data, such as that created by DNS cache poisoning.

"This announcement coupled with recent ones by Comcast, various ccTLDs and even ICANN, is an important signal not only for application providers, ISPs, and telcos, but also for registrars to begin planning for their implementation now, to address the need for enhanced security for their customers," said Alexa Raad, CEO of PIR. "Ensuring Internet security and stability are among our highest priorities and being the first to fully deploy DNSSEC positions .ORG registrants to be amongst the first to safeguard their users from escalating security threats, especially as Internet usage continues to grow exponentially."

Launching signed delegations, with the technical support of Afilias, is the final step in PIR's phased approach to fully deploying DNSSEC within the .ORG zone. A rigorous "friends and family" testing phase, started in June of 2008 has enabled PIR not only to thoroughly test and address operational and deployment issues related to zone management, key distribution and rollover, but also to assist registrars in the development and deployment of the service.

"We applaud PIR's leadership in the deployment of DNSSEC in the gTLD space," said Rod Beckstrom, President and Chief Executive Officer of ICANN. "Opening up general registration of signed zones in .ORG is a major step forward."

All interested registrars must pass a mandatory DNSSEC Certification Test. For more information regarding .ORG DNSSEC initiatives and information, please visit: www.pir.org/dnssec.

Read full story: BBC

But what about the poorer nations of the world that use scripts other than the largest IDNs and the typical Latin character set currently available on the net? What about Amharic, or Georgian, Azeri or Thai, Burmese or Cambodian? Doesn't the internet community have a goal of reaching out to them in their own languages too? The answer is yes, but I fear that despite the rhetoric, some of ICANN's policies may actually end up creating disincentives for companies wishing to fully build out the IDN space.

To listen to the words of Rod Beckstrom, ICANN's new-ish leader, the community's goal is to help make the internet available to anyone in their own language—and in their own character set or script. And, as we heard during the Seoul ICANN meeting last year—there was actually a celebratory cocktail to usher in the new IDN age—IDNs are the future. Still, work on Chinese, Korean and the like is only the beginning. There are dozens of scripts out there.

However, there is potentially a real flaw in ICANN's planning that threatens to upend this vision of universal IDN access, effectively leaving some scripts "out in the cold". Under ICANN's new gTLD implementation plan as presently proposed, registries operating existing gTLDs (or those hoping to operate new ones) will be required to apply for each IDN version separately… and pay full fees for each one. This directly impacts the go/no go decision for registry operators who need to make a reasonable "business case" for each script that they apply for, in order to justify the high application costs. And, while these costs might seem trivial for gTLDs in, say, Chinese or Arabic, this policy pretty much ensures that registry operators (new or old) will leave some scripts undeveloped.

The likely upshot is that the gTLD revolution going on around the world will bypass Georgian, Burmese, and Amharic entirely… furthering the digital divide.

There may be a solution, if ICANN has the flexibility to adjust its policies. Many of the evaluation costs in the new gTLD process are duplicated. As just one example, if a potential registry operator applies for multiple gTLDs, it is likely that most technical qualifications will only have to be evaluated once. This would lower ICANN's evaluation costs, and should lead to reduced application costs as well, leading to more competition for (and interest in) smaller scripts. And there may be other ways to lower the barriers to entry so that companies large and small will be able to make the business case for a truly, fully IDN-friendly internet.

At every ICANN and Internet Governance Forum meeting we hear about the need to make the internet an equal- (or at least more equal-) access platform, one that respects language and culture diversity. Lowering the costs for companies wanting to provide IDN access in less popular scripts is one obvious, tangible way to make this happen. A little flexibility could go a long way to providing a real internet future for the millions that speak and write Armenian or Burmese or a host of other languages.

Written by Andrew Mack, Principal at AMGlobal Consulting

Coverage of past ICANN meetings:
ICANN 36 in Seoul, South Korea
ICANN 35 in Sydney, Australia
ICANN 34 in Mexico City

Comments and questions?
Please post them below in the comment section of the page or send us an email.

* * *

Update / Local Time: Tue, Mar 17, 2010 at 1:27 AM — Gray Chynoweth, GC, VP Business Operations for Dyn Inc. summarizes the ICANN 37 meetings in Nairobi, Kenya.

Update / Local Time: Tue, Mar 17, 2010 at 1:25 AM — Gray Chynoweth, GC, VP Business Operations for Dyn Inc. talks with Anthony Van Couvering, CEO of Minds + Machines, at ICANN 37 in Nairobi, Kenya.

Update / Local Time: Thu, Mar 11, 2010 at 9:35 PM — Gray Chynoweth, GC, VP Business Operations for Dyn Inc. sits down with Bart Boswinkle, Senior Policy Advisor for the Country Code Name Supporting Organization, at ICANN 37 in Nairobi, Kenya.

Update / Local Time: Thu, Mar 11, 2010 at 9:30 PM — Gray Chynoweth, GC, VP Business Operations for Dyn Inc. speaks with Zahid Jamil, a representative for business interests and other major topics, and a big player for ICANN, at ICANN 37 in Nairobi, Kenya.

Update / Local Time: Thu, Mar 11, 2010 at 7:50 PM — Gray Chynoweth, GC, VP Business Operations for Dyn Inc. talks about DNS Security (DNSSEC) with longtime Internet industry leader Steve Crocker, CEO of Shinkuro Inc., at ICANN 37 in Nairobi, Kenya. Updates on the root being signed or scheduled to be signed: .ORG to be signed in July, .COM next year, .NET end of 2010. ccTLDs's showing much activity across the board.

Update / Local Time: Thu, Mar 11, 2010 at 7:46 PM — Gray Chynoweth, GC, VP Business Operations for Dyn Inc. spends a few minutes with Ndeye Maimouna, Director of ITC in Senegal, about security around the location of this ICANN 37 meeting being in Nairobi, Kenya.

Update / Local Time: Thu, Mar 11, 2010 at 12:32 AM — Gray Chynoweth, GC, VP Business Operations for Dyn Inc. discusses a 2nd topic with Margie Milam about vertical integration and registry/registrar separation around distribution at ICANN 37 in Nairobi, Kenya.

Update / Local Time: Thu, Mar 11, 2010 at 12:31 AM — Gray Chynoweth, GC, VP Business Operations for Dyn Inc. speaks with ICANN Policy Director, Marika Konings, about registration abuse at ICANN 37 in Nairobi, Kenya.

Update / Local Time: Wed, Mar 10, 2010 at 10:30 PM — Gray Chynoweth, GC, VP Business Operations for Dyn Inc. meets with Stephane Van Gelder, General Manager of Indom.com at ICANN 37 in Nairobi, Kenya.

Update / Local Time: Wed, Mar 10, 2010 at 10:07 PM — Gray Chynoweth, GC, VP Business Operations for Dyn Inc. meets with Margie Milam, ICANN Senior Policy Counselor, at ICANN 37 in Nairobi, Kenya. The main topic for this video is Specific Trademark Issues (STI).

Update / Local Time: Tue, Mar 9, 2010 at 10:38 PM — Gray Chynoweth, GC, VP Business Operations for Dyn Inc. speaks with ICANN CEO, Rod Beckstrom, at ICANN 37 in Nairobi, Kenya. Big stories coming out of Kenya include further networking out of Africa, EOI board vote and progress areas for new gTLDs.

Update / Local Time: Tue, Mar 9, 2010 at 9:10 PM — Gray Chynoweth, GC, VP Business Operations for Dyn Inc. has a discussion with Liz Gasster, ICANN Senior Policy Counselor, at ICANN 37 in Nairobi, Kenya. WHOIS is the main topic.

Update / Local Time: Tue, Mar 9, 2010 at 7:50 PM — Gray Chynoweth, GC, VP Business Operations for Dyn Inc. chats with Avri Doria, Chair, Executive Committee of the ICANN Non-Commercial Stakeholders Group, at ICANN 37 in Nairobi, Kenya. Expressions of interest in new gTLD is the main topic.

Update / Local Time: Tue, Mar 9, 2010 at 10:24 AM — Gray Chynoweth, GC, VP Business Operations for Dyn Inc. discusses the .XXX TLD with Stuart Lawley, Chairman & President of the ICM Registry at ICANN 37 in Nairobi, Kenya.

Update / Local Time: Wed, Mar 3, 2010 at 11:23 PM — Gray Chynoweth, General Counsel & VP, HR at Dyn Inc. discusses the upcoming ICANN 37 meeting in Nairobi, Kenya. Gray introduces the video blog series, done in conjunction with CircleID for the 4th time. Gray also outlines the topics for this event including security and remote access, new TLD's, the .xxx gTLD, DNSSEC rollout, root scaling, WHOIS study and more.

If you're not making the trip out to Africa, stay tuned and watch all of the footage from ICANN 37 in Nairobi, Kenya following Gray's hike of Mount Kilimanjaro in Tanzania with other Internet professionals (http://kili2010.com).

Brought to you in partnership with Dyn Inc. Please add your feedback and suggestions using the comment form provided on this page or contact us directly.

All ICANN meetings seem to be surrounded by some bit of controversy and excitement, but the Nairobi meeting is possibly more dramatic than many others. The last attempt to hold a meeting in Nairobi failed, with ICANN opting to hold the meeting near LA's airport, LAX, instead. This time round there was quite a bit of controversy and tension surrounding the meeting's location.

The end result of the tension, security worries and everything else is that quite a large number of people who would normally attend the meeting will be staying at home.

Others will be traveling to Reston, VA, where Neustar has organised a US offsite location. Though with the time difference between VA and Nairobi anyone in attendance will end up working through the night!

So what's on the agenda?

New TLDs—this time round the focus will be on "EOI"—the concept of "expressions of interest" that was mooted at the last meeting in Seoul.

DNS SEC will be on the agenda again, but getting excited about it is far from easy - sorry!

IPv4 depletion will probably get a look in, but it's still a "hard sell". Until ISPs "buy in" and start deploying v6 on their public networks it's going to be nigh on impossible to make any tangible or meaningful movement in this area.

IDN ccTLDs. You can expect updates from the various countries that have applied using the "fast track". There might be more applications from other countries, as the meeting will have attracted its usual media circus.

But the real "hot potato" for ICANN is going to be .xxx

Following on from the recent decision which found that ICANN had "dropped the ball", the ICANN board will be voting on the Friday of the public meeting.

In reality you can expect to see board members being canvassed / briefed / harassed by interested parties pretty much all week. How will they vote?

Will the US government try to intervene?

If ICANN do move ahead with .xxx, will that have any impact on new TLDs?

If ICANN's board doesn't move ahead with .xxx this time round there is little or no chance that Stuart Lawley and ICM Registry are going to throw in the towel.

To start with they've no reason to. They have just won a legal battle that shows that ICANN was in the wrong. Sure, it may not be "binding", but any decision that so much as casts a doubt on ICANN's processes and procedures is a "win" for ICM—and rightly so.

So how would ICANN fare if ICM were to pursue this through to the next level?

ICANN stakeholders probably don't want to see their money being poured down a legal drain ... I know I don't.

Written by Michele Neylon, MD of Blacknight Solutions

Background: Office Depot originally obtained a judgment against frequent cybersquatting defendant John Zuccarini. Office Depot then assigned the judgment to DS Holdings. Office Depot obtained the judgment in 2000 and it's surprising that 10 years later the judgment is finally being enforced against something. Although Zuccarini is proceeding pro se, it seems like he was or became well versed in putting up roadblocks and delaying resolution of the litigation.

DS went after 190 .com domain names that were registered in Zuccarini's name. DS originally tried unsuccessfully to have the domain names transferred directly to it. (This was the technique successfully used by the plaintiff in Bosh v. Zavala.) Later, DS sought to have a receiver appointed over the domain names. The district court granted DS's request to have the receiver appointed, and Zuccarini appealed. Zuccarini's appeal focused on whether it was proper to appoint the receiver in the Northern District of California, since the domain names were not necessarily "located" there.

The court's ruling: The court runs through basic principles of in rem jurisdiction and what rules apply. The court then looks to federal rules to determine where the receiver should be appointed in this case. Finding no applicable federal rule, the court looks to California law. California law provides that a writ of execution may be issued "in the county where the levy is to be made." With this in the background, the two questions presented by the court are: (1) "are domain names property that is subject to execution?" and (2) "if so, where are the domain names located for purposes of execution?"

With respect to the first question, the court cites to Kremen v. Cohen, and easily concludes that (under California law) "domain names are intangible property subject to a writ of execution." Kremen undermined Network Solutions, Inc. v. Umbro Int'l, Inc., 259 Va. 759, 770 (Va. 2000), a Virginia case widely cited for the proposition that creditors cannot get at domain names because domain names are contract rights rather then property. To the extent Kremen did not refute Umbro, this decision definitely provides the necessary ammunition to creditors. (Again, collection is state-specific, and apart from the analysis of the nature of domain names, the outcome in these cases turns on the statute in question, which vary from state to state. That said, I think given the robust marketplace in domain names, Umbro's conception of the domain name as a personal services agreement seems outdated, and most courts will easily recognize this.)

With respect to the second question, the court acknowledges that "attaching a situs to intangible property is ... a legal fiction," and the determination must be made in a "context-specific" manner. Fairness was relevant to the court's determination of the appropriate situs, and the court was understandably not receptive to Zuccarini's policy arguments that allowing a court to issue an order directed to the registry would mean that every .com and .net domain name could be levied through courts in the Northern District of California. The court also looked to the ACPA, which provides for in rem jurisdiction over certain cases where the "registrar, registry, or other domain name authority" is located. Although this was not an ACPA case, the court found the structure set up by the statute persuasive and that the writ was appropriately issued from Northern District of California since VeriSign (the registry for .com domains) is located there.

My reaction: The decision clears up two things. Although post Kremen v. Cohen there shouldn't have been much dispute that domain names are property which are subject to the claims of creditors, the case clears up any lingering doubt that may have existed. (Kremen and this case applied California law, but the result shouldn't vary much across other states.) Second, the decision makes clear that a court which has jurisdiction over the registry can issue an order allowing the creditor to get at the domain names. The case also implicitly affirms that getting a receiver appointed to sell the domain names is the appropriate route for the creditor. Getting the name transferred to the creditor is not a remedy allowed under California law (Palacio Del Mar Homeowners Ass'n, Inc. v. McMahon). Additionally, a transfer of domain names from a cybersquatter to a judgment creditor raises some issues around potential infringement of third party rights through sales or other exploitation of the domain names. (See this post on Bosh v. Zavala for some discussion of those issues.) The method ultimately used by DS in this case (a receiver) avoids all of these issues, or at least shifts them over to the receiver rather than the creditor.

Finally, as mentioned above, this ruling makes clear that regardless of whether a domain name is registered through a foreign registrar, a court having jurisdiction over the registry can issue an order directing transfer of the domain names to a receiver. With respect to .com and .net domain names, this means that creditors can try to get at these domain names through proceeding in the Northern District of California (as the court notes, VeriSign is the registry for .com and .net domain names and is headquartered in Mountain View). While the ACPA allows plaintiffs to file in rem suits where the registry is located, it's nice (for creditors) to have a similar ruling in the post-judgment context, and one from the Ninth Circuit as well.

Will this cause a rush of similar claims to be filed in the Northern District of California? It's tough to say, but even post Kremen, it does not seem like there's been a ton of post-judgment collections activity with respect to domain names. From a practitioner's standpoint, it's certainly nice to have this rule on the books.

An odd footnote: Zuccarini is a colorful character whose internet exploits have gotten him in trouble with the law. He was arrested in 2003. (Here's a post at CircleID rounding up reactions to his arrest.) According to his Wikipedia entry which contains a link to a Bureau of Prisons search, he was released in 2005.

Written by Venkat Balasubramani, Tech-Internet Lawyer at Focal PLLC